Guidance on the Enforceability of Classroom
Policies and Practices
Below are some basic legal guidelines to help faculty determine whether
their classroom policies are legally enforceable or supportable. These
guidelines are not intended to be comprehensive, but they should serve
as a good starting point for faculty to "test" policies before they implement
them.
Generally, the answer to the question, "is this classroom policy enforceable?"
will be either--
"Yes, if . . ." or "No,
unless . . ." the policy or practice imposed by the faculty member:
-
allows different treatment for a particular student as a reasonable accommodation
of a disability (such accommodation is not mandated if it requires
a "fundamental alteration of the academic program")
-
allows different treatment for a particular student as an accommodation
of a "sincerely held religious belief" (the University must be able
to establish that it has a "compelling interest" in denying such accommodation
or that providing the accommodation imposes an "undue hardship" on the
University)
-
is "rationally related" to an educational purpose; in other words,
you are able to provide a rational justification for imposing the
policy or practice
-
is not "arbitrary and capricious," in other words, it is imposed
consistently by the instructor
-
is not imposed maliciously
-
is not applied, or excused, on the basis of race, gender, or national
origin; or on the basis of religion or disability, when reasonable
accommodation to those factors is required
Example 1
There is no such thing as an excused absence, including involvement
in an official sports event or a religious holiday.
There is no University policy excusing students from class for participating
in athletic events, so that part of the policy is clearly enforceable.
However, the second part of the policy would likely be interpreted by a
reviewing court as not meeting our obligation to provide reasonable accommodation
of a student's sincerely held religious beliefs. Where such accommodation
has not been provided, the University position succeeds only if we can
establish that the University has a compelling interest in denying the
accommodation or that providing the accommodation imposes an "undue hardship."
Example 2
A teacher has been asked to find a student in class to assist a
disabled student with note-taking. After identifying the disabled student,
the teacher appoints the student sitting next to her as note-taker.
Two sources of Federal law prohibit the public disclosure of the student's
disability as described here. The Buckley Amendment generally prohibits
us from disclosing student information without the student's written consent
(except for a few categories of "directory information"). The ADA is particularly
stringent in requiring that information about a student's disability be
disclosed only as absolutely necessary to enable the University to meet
its obligations to provide reasonable accommodations. Disabled students
who desire accommodations must identify themselves to the Disability Services
Office, which facilitates appropriate accommodation arrangements. Disability
Services procedures require that the disabled student deliver a note-taker
accommodation request form to the professor and that the professor ask
for note-taking volunteers without identifying the disabled student.
Example 3
Students come to class unprepared. Teacher dismisses the whole class
and counts each student absent.
Arguably, all students have a contract with the University to provide
a certain amount of education. This practice may prompt an innocent student's
claim that dismissing the class breaches his contract with the University.
The student who has shown up prepared has kept his part of the bargain,
while the University is not doing so. In addition, counting an innocent
student absent may give rise to a grade challenge, if the teacher also
has a policy that grades are negatively affected by absences. A reviewing
court might have trouble finding a rational basis for 1) declaring absent
students who were not, and 2) academically penalizing a student who has
done nothing wrong. Finally, a professor should consider whether this is
a good teaching practice.
Example 4
A student wears a t-shirt with the words "f--- racism" on the front.
The instructor tells the student that she must wear the t-shirt inside
out or leave the classroom.
This practice may interfere with a student's First Amendment right
to freedom of expression. However, if the message on the shirt in fact
disrupts the class and interferes with the learning process, such disruption
may overcome the student's free expression interest. The disruption must
be real; if no students in the class are disrupted, and the instructor
simply dislikes or disapproves of the message on the t-shirt, this practice
may not be enforceable.
Example 5
Students leave the class after waiting 15 minutes for the professor.
The professor arrives five minutes after the students leave and counts
all students absent for the day.
Arguably, this practice is simply unreasonable, and counting students
absent may give rise to grade challenges, if the professor also has a policy
that grades are negatively affected by absences. In addition, a student
may claim that the University breached its contract by failing to perform
its duties of teaching. Again, the professor should consider whether this
is a good teaching practice.
Example 6
A student says aloud in class: "This test was bullshit." The instructor
demands an apology and that the student leave the class. The student refuses.
The teacher tells the student to officially drop the class.
A student may claim that this practice interferes with his or her
First Amendment right to freedom of expression. However, this statement
could, and probably would, substantially interfere with the instructor's
ability to conduct and control the class and thus may undermine the credibility
and authority of the instructor. If the statement disrupts the class or
undermines the instructor's credibility and authority, and it therefore
interferes with the University's interest in maintaining control of the
class so that teaching and learning may proceed, such disruption would,
in our opinion, overcome the student's free expression interest. The disruption
must be real; if no students in the class are disrupted, and the instructor's
credibility and authority are not threatened, this practice may not be
enforceable.
If you have additional concerns about the legal
enforceability of a classroom policy, please contact the Office of Legal Affairs. Updated 8/18/98
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